IN THE CASE OF:	  

		BOARD DATE:  1 November 2012

		DOCKET NUMBER:  AR20120006402 


THE BOARD CONSIDERED THE FOLLOWING EVIDENCE:

1.  Application for correction of military records (with supporting documents provided, if any).

2.  Military Personnel Records and advisory opinions (if any).


THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE:

1.  The applicant requests, in effect, remission or cancellation of his indebtedness in the amount of $6,217.80.

2.  He states he was relying on a subject matter expert at his in-processing for active duty and was not aware there was an error; therefore, he should not be held responsible for this debt.  He further states he cannot afford to pay this debt.

3.  He provides:

* U.S. Army Human Resources Command (AHRC) Orders A-08-921898
* AHRC Orders A-08-921898A01
* AHRC Orders A-08-921898A02
* Debt Remission/Cancellation Packet
* DD Form 214 (Certificate of Release or Discharge from Active Duty)

CONSIDERATION OF EVIDENCE:

1.  The applicant was ordered to active duty from the U.S. Army Reserve for operational support for a period of 1095 days (8 January 2010-6 January 2013) by AHRC Orders A-08-921898.

   a.  These orders were amended to show a period of active duty during the period 19 December 2009-17 December 2012.
   
   b.  These orders were further amended to show a period of 665 days of active duty with an ending date of 14 October 2011. 

2.  An HRC Memorandum, subject: Early Release from Active Duty for Operational Support for the [Applicant], dated 12 August 2011, stated the early release from active duty for operational support was reviewed in accordance with Army Regulation 600-8-24 (Officer Transfers and Discharges), paragraph 2-7 (rules for processing voluntary release).  He would be released from active duty no later than 14 October 2011. 

3.  He submits two memoranda of record from commanders, dated 16 August 2011, recommending approval of his request for cancellation of his debt in accordance with Army Regulation 600-4, (Remission or Cancellation of Indebtedness), chapter 3, paragraph 1.
 
4.  A Notice of Potential Overpayment addressed to the applicant with a suspense date of 20 August 2011, stated that records showed the applicant was indebted to the U.S. Government in the amount of $6,217.80 for basic allowance for housing [BAH]/20100312-20100731 (12 March through 31 July 2010).

5.  He submits a memorandum for record (his sworn statement), dated 25 August 2011, stating the purpose of the memorandum was to request cancellation of debt due to both injustice and financial hardship.

	a.  He states he reported to Fort Stewart, GA on 19 December 2009.  His BAH rate was changed from his home of record in Florida to Fort Stewart, GA.  He sought assistance regarding this change.  After reviewing his orders a Reserve finance department agreed that as a Reserve Soldier he was supposed to receive BAH from his home of record and changed his BAH accordingly.

	b.  On or around 19 July 2011, he received an email from Mr. Paul T-----, a member of the Fort Stewart finance department stating that he was being processed for a debt.  Following multiple conversations with him and his supervisor, the end result was that he was responsible for this debt regardless of who was at fault for issuing the funds and or changing his BAH to his home of record.  He questioned why he should suffer because as a Soldier he did the right thing.

	c.  He further stated that it had already become a financial hardship because of the $600 difference in BAH, leaving him with a $400 shortfall.  Because of this change he had no means of establishing an emergency fund or savings account.  This change also forced him to request an early release from active duty back to the Reserve because he could not maintain both households.  He stated that, in effect, if he is required to repay his debt that he will miss credit payments, negatively impacting his secret security clearance.  His wife is also a federal employee and this debt will also affect her as well because it is important to her employer that she maintains a good credit standing.    

6.  He submits a copy of his DA Form 3508 (Application for Remission or Cancellation of Indebtedness).  His application shows his monthly income as $4,750.15 and his spouse's as $3,126.64 (a combined income at the time of $7,876.79).  It lists numerous debts including mortgage, line of credit, numerous credit cards, student loan, two automobile loans, and other miscellaneous debts.  He lists his combined monthly expenses as $8,181.88 leaving him with a negative balance of $306.09.  This application also shows he owns or is in the process of purchasing a condominium and a house.  He submits copies of financial statements related to some of these debts.

7.  A document showing disapproval of his application for remission or cancellation of indebtedness in the amount of $6,217.80 is not available to the Board for review. 

8.  He was voluntarily released from active duty on 14 October 2011.

9.  In the processing of this case an advisory opinion was obtained from the Army G-1, Office of the Deputy Chief of Staff (ODCS), Chief, Compensation and Entitlements Division.  The advisory official stated that after careful review of this case, it was their opinion that the applicant, a mobilized Reservist with a dependent, would be authorized BAH at the with-dependent rate based on his duty station of Fort Stewart, GA, at the time he was called to active duty.  The ODCS, Army G-1 official agreed with the Defense Finance and Accounting Service's (DFAS) determination that this is a valid debt and did not support granting full administrative relief.

   a.  The ODCS, G-1 official further stated the BAH for a Reserve Component Soldier with dependents called/ordered to active duty for more than 180 days and authorized movement of dependents and household goods is based on the permanent duty station beginning on the day he reports to that location.  This is based on Title 37, U.S. Code, Section 403(g) and the Joint Federal Travel Regulation, Volume 1, Chapter 10, paragraph U10428-D1c.
   
   b.  Orders A-08-921898, dated 6 August 2009, called/ordered the applicant to active duty for 1,095 days.  He was authorized travel by personally owned vehicle, and movement of his dependents and household goods at government expense.  The applicant subsequently received two amendments to his order reducing his active duty days to a release from active duty date of 14 October 2011.  Therefore, the applicant's BAH should be based on Fort Stewart, GA rather that his primary residence in Tampa, FL.

10.  The advisory opinion was forwarded to the applicant for comments or a rebuttal.  He replied and stated he understood DFAS was refusing to accept any responsibility in regard to this debt of $6,217.80.  However, he still does not believe or feel that he is responsible for the debt placed upon him because of the actions of the finance department.

11.  Army Regulation 600-4 provides instructions for submitting and processing applications for remission or cancellation of indebtedness to the U.S. Army.  Applications must be based on injustice, hardship, or both.  The regulation states, in pertinent part, that a Soldier's debts to the U.S. Army may be remitted or canceled in cases arising from payments made in error to a Soldier, payments made in excess of an allowance on behalf of a Soldier, debts incurred while serving on active duty as a Soldier, and debts acknowledged as valid.

   a.  Paragraph 1-12 of the same regulation contains guidance on determining injustice or hardship and states that the following factors will be considered:  the Army's policy in the area of indebtedness to the U.S. Army (for example, excess leave or BAH while living in Government housing); the Soldier's awareness of policy and procedures; past or present military occupational specialty, rank, years of service, and prior experience are taken into consideration; the Soldier's monthly income and expenses; the Soldier's contribution to the indebtedness to the U.S. Army by not having the situation corrected; and additional income or assets (for example, spouse's salary, savings account, and bonds).

   b.  Paragraph 1-13 of the same regulation outlines the following additional factors for consideration in determining injustice:  the applicant did not know, and could not have known, of the error; and the applicant inquired of a proper authority and was told that the payment was correct.

   c.  Paragraph 1-14 of the same regulation outlines the following additional factors for consideration in determining hardship:  repayment will cause hardship because of excessive monthly expenses due to (1) living in a high cost area, 
(2) living apart from family members because of military orders, (3) number and age of family members, (4) medical and dental bills that cannot be reimbursed, and (5) other unusual expenses.  Expenses caused by living standards that are too high or by mishandling of funds are not a basis for a hardship case.

12.  Army Regulation 37-104-4 (Military Pay and Allowances Policy) provides Department of the Army policies for entitlements and collections of pay and allowances for active duty Soldiers.  It is used in conjunction with Department of Defense Financial Management Regulation, Volume 7, Part A, Department of Defense 7000.14-R.

   a.  Paragraph 28-2 states, in part, that if the Secretary of Defense or any designee determines that a Soldier is indebted to the U.S. Government as a result of an erroneous payment made to or on behalf of the Soldier by an agency of the U.S. Government, that debt may be collected.
   
   b.  Paragraph 32-1 of this military pay regulation states, in part, that the Secretary of the Defense may waive U.S. claims for erroneous payments of pay and allowances, including travel and transportation allowances, totaling less than $1,500 or deny waivers in any amount.  A claim of the United States against a Soldier or former Soldier, arising out of an erroneous payment of pay and allowances including travel and transportation allowances may be considered for waiver within 3 years from the date of discovery, when collection of the erroneous payment would be against equity and good conscience, and not in the best interest of the United States.

   c.  Paragraph 32-4 of the same regulation states, in part, that a debt may not be waived merely because it resulted from administrative error.  It further states that no one is entitled to unearned compensation, and only in very unusual circumstances would equity and good conscience suggest that an individual should keep an overpayment.

DISCUSSION AND CONCLUSIONS:

1.  The applicant’s request for cancellation or remission of the debt he incurred as a result of erroneously receiving BAH based on his home of record was carefully considered.  However, by regulation the member must provide clear and convincing evidence of injustice or hardship to support approval of an application for cancellation or remission of indebtedness.

2.  He contends the finance department should be responsible for his debt because it made the error leading to his overpayment of BAH.  However, a debt may not be waived merely because it resulted from administrative error. 

3.  Additionally, he contends that he cannot afford to repay the debt and wouldn't be able to establish an emergency fund or savings account if he was required to repay it.  However, his application for relief of his indebtedness lists mortgage, line of credit, numerous credit cards, student loan, two automobile loans, owns or in the process of purchasing a condominium and a house,and other miscellaneous debts.  Army Regulation 600-4 specifically states that expenses caused by living standards that are too high or by mishandling of funds are not a basis for a hardship case determination; therefore, based on his income and the number and amount of combined personal debts, his situation would not appear to meet the criteria for a hardship case.

4.  By law and regulation, no one is entitled to unearned compensation, and only in very unusual circumstances would equity and good conscience suggest that an individual should keep an overpayment.  

5.  In view of the foregoing, there is an insufficient basis for granting the applicant's request for remission or cancellation of his debt of $6,217.80.

BOARD VOTE:

________  ________  ________  GRANT FULL RELIEF 

________  ________  ________  GRANT PARTIAL RELIEF 

________  ________  ________  GRANT FORMAL HEARING

___X____  ____X __  ____X___  DENY APPLICATION

BOARD DETERMINATION/RECOMMENDATION:

The evidence presented does not demonstrate the existence of a probable error or injustice.  Therefore, the Board determined that the overall merits of this case are insufficient as a basis for correction of the records of the individual concerned.




      _______ _   X______   ___
               CHAIRPERSON

      
I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case.

ABCMR Record of Proceedings (cont)                                         AR20120006402



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ABCMR Record of Proceedings (cont)                                         AR20120006402



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